3Qs: Free speech in the digital age

Before his teaching days, Dale Her­beck devel­oped a pas­sion for the art of argu­ment on his col­lege debate team and later as the coach. That expe­ri­ence led him to study law and then freedom of expres­sion. We asked Her­beck, who joined the North­eastern fac­ulty last fall as a pro­fessor and chair of the Depart­ment of Com­mu­ni­ca­tion Studies in the Col­lege of Arts, Media, and Design, to dis­cuss how free speech and pri­vacy have evolved in the Internet age, and whether the laws gov­erning them have suc­cess­fully kept pace.

1. You’ve been teaching communication law and freedom of speech topics for more than 25 years. How have these issues evolved as society has transitioned into the Internet age?

It’s been fascinating to watch. The Internet has stood some our traditional thinking on its head. For example, it used to be hard for the average person to run afoul with communication law because you and I didn’t have a soapbox. Now, everyone has a blog or a Twitter handle. You can reach an audience you never had before, but one outcome of this is that it’s created the potential for the average person to defame someone.

Another example is that American privacy law has traditionally been set up as a fort. We lived inside the fort and privacy laws were designed to protect us from government, be it from it illegally wiretapping people or getting access to their personal information. But now on Facebook and other social media, people are sharing their own privacy by posting on these sites. It’s raised the stakes on issues like privacy because people assume theirs is protected. Well, it’s protected against the government, but not against the people themselves.

2. Laws typically govern a physical space, whether it is a city, state, or country. But the Internet does not have a physical boundary. How has this affected laws related to freedom of expression?

One of the most interesting issues we’re facing today is how something posted online that is available internationally is covered under national laws. When the video trailer “Innocence of Muslims” was posted on YouTube, it didn’t get much attention in the U.S. initially, but it later went viral and created an international backlash. The First Amendment protects that movie here in America, but other countries can immediately shut down stuff like this. Another global example is how some countries wipe a person’s public criminal record clean after incarceration, while other countries don’t. But what does that mean for whether those records are available online?

One issue that particularly resonates with students today is off-campus student speech. The famous Tinker standard (Tinker v. Des Moines Independent Community School District) states that students do not “shed their constitutional rights to freedom of speech or expression at the schoolhouse gate.” But what if a student sets up a blog or posts a YouTube video to bully another student, and it’s done during after-school hours without using school resources? Schools have moved to block these sites, but students can still see the content. What this issue gets at is the physical space that separates school from non-school has totally disappeared.

I’m also writing a paper now related to this topic; it’s about obscenity law in America, which is based on the contemporary community standards and essentially boils down to the fact that there is no national standard on what qualifies as obscene. Rather it’s based on what individual communities think. So a liberal community might be tolerant of sexually explicit material, but a conservative community might not. But in the cyberworld, these kinds of physical boundaries don’t exist.

3. What are some of the biggest free speech and privacy issues society will face in the near future?

One ongoing issue is that the law can’t keep up with how fast technology is evolving. It can take years for issues to be resolved in court, and by then new technological advances have appeared. One example is with illegal file sharing of copyrighted material. Every time the music or movie industry wins a copyright case and limits one form of file sharing, new technology emerges that allows users to more easily distribute song or movie files illegally.

I like showing my students a clip from the movie Minority Report, where the main character is walking through a futuristic mall. Digital advertising boards all around him are scanning his retina, identifying who he is, and displaying ads tailored to his interests. I tell my students that that’s exactly what we have now with the Internet. My Internet experience might be much different from yours because sites like Facebook and Google collect user data and personalize the experience. Facebook might say it’s free, but it’s not free; you’re paying, and what you’re paying for it with is your privacy. I don’t mean to say this is all bad, but it’s an issue to which people will be paying more attention in the near future.